Matter of Lopadchak v. R.W. Express LLC , 20 N.Y.S.3d 675 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 520473
________________________________
In the Matter of the Claim of
IVAN LOPADCHAK,
Respondent,
v
MEMORANDUM AND ORDER
R.W. EXPRESS LLC et al.,
Appellants.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: October 16, 2015
Before: McCarthy, J.P., Rose, Lynch and Devine, JJ.
__________
Malapero & Prisco, LLP, New York City (David H. Allweiss of
counsel), for appellants.
Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for Workers' Compensation Board,
respondent.
__________
McCarthy, J.P.
Appeal from a decision of the Workers' Compensation Board,
filed March 26, 2014, which ruled that claimant was excused from
providing timely notice of his accident pursuant to Workers'
Compensation Law § 18.
Claimant submitted a claim for workers' compensation
benefits alleging that he was injured in an automobile accident
that occurred while he was working on January 2, 2012. The
employer and its workers' compensation carrier (hereinafter
-2- 520473
collectively referred to as the employer) controverted the claim,
contending, among other things, that claimant had not provided
written notice of the accident within 30 days of its occurrence
(see Workers' Compensation Law § 18). The Workers' Compensation
Board excused the lack of timely notice, finding that the
employer was not prejudiced thereby, and the employer now
appeals.
We affirm. Failure to provide timely written notice of an
accident to an employer pursuant to Workers' Compensation Law
§ 18 generally bars the claim "unless the Board excuses that
failure on the ground that notice could not be given, the
employer or its agent had knowledge of the accident, or the
employer was not prejudiced" (Matter of Dusharm v Green Is.
Contr., LLC, 68 AD3d 1402, 1403 [2009]; see Matter of Rankin v
Half Hollow Hills Cent. Sch. Dist., 105 AD3d 1242, 1242 [2013]).
Here, although claimant did not provide written notice of the
January 2, 2012 accident to the employer, he filed his claim for
benefits based upon that accident with the Workers' Compensation
Board on January 31, 2012. On February 6, 2012, the Board
provided its Notice of Case Assembly to the employer, which
informed the employer of the claim, the date of the accident and
that claimant was alleging injuries to his head, neck and back.
Notably, the record reflects that claimant received prompt
medical attention, including MRIs of his lumbar and cervical
spine in February 2012. Under these circumstances, substantial
evidence supports the decision of the Board that the short delay
between the expiration of the 30-day notice period and the
employer receiving notice of the claim did not prejudice the
employer so as to prevent it from properly investigating the
claim (see Matter of Pierce v New York Tel. Co., 99 AD2d 898, 898
[1984]; compare Matter of Rote v Lexington Ctr., 2 AD3d 1085,
1085-1086 [2003]). The employer's remaining claims have been
examined and found to be without merit.
Rose, Lynch and Devine, JJ., concur.
-3- 520473
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court